# [1974] 3 S.C.R. 589

- **Citation:** [1974] 3 S.C.R. 589
- **Court:** Supreme Court of India
- **Decided:** 1974-03-14
- **Case number:** Writ Petition No. 286 of 1970
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1974-3-s-c-r-589-6118
- **Pages:** 6

## Headnote

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[A.
589
S. N. KHARKHANIS & ORS.
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UNION Or' INDIA & ORS.
March 14, 1974 ·
N. RAY, c. J., P. JAGANMOHAN REDDY, s. N. DWIVEDI,
P. K. GOSWAMI AND R. S. SARKARIA, JJ.J
Co11stitutio11 of India, Art. 309, proviso-Integrating two Class I servicts
/Jy Presidential Resolution-Date of integration rnade retrospective by Govern·
n1e1u's letter-Leg(I[ ~·alidity of subsequent letter.
By Presidential resolution dated 12th
August, 1959, the Government or
India, under the proviso to Art. 309 of the Constitution, combined two services of
Central Excise Service Clnss I and Indian Customs Service Class I with effe~t from
J 5th August, 1959. All the· petitioners joined the respective servfoes with effect from
13th July, 1959. Later by decision dated 7th April 1970 the Government decided that
a combined list of seniority of officers in the service should be prepared with re.
fere:nce to April I, 1959, as being the date of merger. The petitioners complained that
by reason of this they were excluded fron1 the list of officers appointed to the initial
constitution to the combined cadre even though they had joined the two separate
seryices on 13th July, 1959, with the result that persons junior to them had become
seniors.
It was contended that the date of 1st April, 1959 on which the two services were
combined for the purpose of inter se seniority was an artificial date chosen arbitrarily
and is sought to be given effect to without any legal authority.
HELD : The contention n1ust be uph~ld. Th.e Government had no authority
to override the Presidential resolution by any subsequent decision which lacked legal
authority and was violative of Art. 14 of the C:institution. The Presidential Resolu.
tion of 12th August, 1959 which drew its authority from the proviso to Art. 309
was clear and categorical in that it not only showed that the question of integra·
tion of the Central Excise Service Class I and the Indian Customs Service Class I
which was older of the two services was under consideration of the Govcrnmenc
of India for quite sometime but that "the President has now been pleased to decide
that the two services should be constituted into a single service with effect from 15th
August. 1959" and that "the services will initially be formed from amongst ail the
existing class l officers of the Customs and Central Ex:dse Services who will hence.
forth be borne on a single combined cadre for all purposes". The subsequent dcci·
fiion of the Government conveyed in the lett~r of 7th April, 1970 had no legal autho.
rity as it was not purported to have been made in the name or with the authority
of the President of India nor did it in any wiy seek to :imend the Presidential Resolu·
tion of 12th August, 1959 nor did it purport to change the date on and from v.·hich
the integration was given effect to. [594 C; 593 B·DJ
Since a final decision was taken on 7th April, 1970 the petitioners coulJ not
havt'l come to this Court earlier. [592 H]
ORIGINAL JURISDICTION : Writ Petition No. 286 of 1970.
Under Art. 32 of Constitution of India for the cnfor,c:tlC!'.'. or
Fundamental rights.
S. N. Prasad, for the peti1ioners.
G. Das and R. JV. Sachthey, for the respondents.
590
SUPREME COURT REPORTS
[ 19741 3 S.C.R,
ARGUMENTS
For the Petitioners: By Presidential r.esolution dated J 2th August,
A
1959 the Indian Customs Service Class I and the Central Excise Service
Class I were integrated with effect from 15th August, 1959. The
resolution also stated that "the service will initially be formed from
amongst all the existing class I officers of the Customs apd Central
Excise Services, who will henceforth be borne on a single combined
cadre for all purposes."
The Government took a decision to change the date of constitution
of the cadre in 1960. On objections having been raised by the service associations the matter was referred to the Union Public Service Commission in 1967 and on the basis of the recommendations of the Commission a final decision was taken on 7th A

## Text

8
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[A.
589
S. N. KHARKHANIS & ORS.
'"
UNION Or' INDIA & ORS.
March 14, 1974 ·
N. RAY, c. J., P. JAGANMOHAN REDDY, s. N. DWIVEDI,
P. K. GOSWAMI AND R. S. SARKARIA, JJ.J
Co11stitutio11 of India, Art. 309, proviso-Integrating two Class I servicts
/Jy Presidential Resolution-Date of integration rnade retrospective by Govern·
n1e1u's letter-Leg(I[ ~·alidity of subsequent letter.
By Presidential resolution dated 12th
August, 1959, the Government or
India, under the proviso to Art. 309 of the Constitution, combined two services of
Central Excise Service Clnss I and Indian Customs Service Class I with effe~t from
J 5th August, 1959. All the· petitioners joined the respective servfoes with effect from
13th July, 1959. Later by decision dated 7th April 1970 the Government decided that
a combined list of seniority of officers in the service should be prepared with re.
fere:nce to April I, 1959, as being the date of merger. The petitioners complained that
by reason of this they were excluded fron1 the list of officers appointed to the initial
constitution to the combined cadre even though they had joined the two separate
seryices on 13th July, 1959, with the result that persons junior to them had become
seniors.
It was contended that the date of 1st April, 1959 on which the two services were
combined for the purpose of inter se seniority was an artificial date chosen arbitrarily
and is sought to be given effect to without any legal authority.
HELD : The contention n1ust be uph~ld. Th.e Government had no authority
to override the Presidential resolution by any subsequent decision which lacked legal
authority and was violative of Art. 14 of the C:institution. The Presidential Resolu.
tion of 12th August, 1959 which drew its authority from the proviso to Art. 309
was clear and categorical in that it not only showed that the question of integra·
tion of the Central Excise Service Class I and the Indian Customs Service Class I
which was older of the two services was under consideration of the Govcrnmenc
of India for quite sometime but that "the President has now been pleased to decide
that the two services should be constituted into a single service with effect from 15th
August. 1959" and that "the services will initially be formed from amongst ail the
existing class l officers of the Customs and Central Ex:dse Services who will hence.
forth be borne on a single combined cadre for all purposes". The subsequent dcci·
fiion of the Government conveyed in the lett~r of 7th April, 1970 had no legal autho.
rity as it was not purported to have been made in the name or with the authority
of the President of India nor did it in any wiy seek to :imend the Presidential Resolu·
tion of 12th August, 1959 nor did it purport to change the date on and from v.·hich
the integration was given effect to. [594 C; 593 B·DJ
Since a final decision was taken on 7th April, 1970 the petitioners coulJ not
havt'l come to this Court earlier. [592 H]
ORIGINAL JURISDICTION : Writ Petition No. 286 of 1970.
Under Art. 32 of Constitution of India for the cnfor,c:tlC!'.'. or
Fundamental rights.
S. N. Prasad, for the peti1ioners.
G. Das and R. JV. Sachthey, for the respondents.
590
SUPREME COURT REPORTS
[ 19741 3 S.C.R,
ARGUMENTS
For the Petitioners: By Presidential r.esolution dated J 2th August,
A
1959 the Indian Customs Service Class I and the Central Excise Service
Class I were integrated with effect from 15th August, 1959. The
resolution also stated that "the service will initially be formed from
amongst all the existing class I officers of the Customs apd Central
Excise Services, who will henceforth be borne on a single combined
cadre for all purposes."
The Government took a decision to change the date of constitution
of the cadre in 1960. On objections having been raised by the service associations the matter was referred to the Union Public Service Commission in 1967 and on the basis of the recommendations of the Commission a final decision was taken on 7th April, 1970. For the first time
in the letter of 7th April, 1970, (st April, 1959 was taken as the date
on which the two services were merged and the petitioners made
representations against the said arbitrary date. Since after this date
some juniors were promoted, the petitioners approached this Court.
As stated in paragraph 5 of the letter of 7th April, 1970 by taking
the artificial date of Jst April, 1959 the petitioners have been discriminated against as the direct recruits of the year 1958 have been included
in the initial constitution of the service and the petitioners who
were
direct recruits of the year 1959 and who at the time of the integration
of the two services were existing officers and formed t(1e cadre of the
combined servic~§ had not been so included.
There cannot be any question of laches as explained above.
For·11ze respondent: The decision to merge the two services was
taken in March 1959 and an official committee was appointed to determine the inter se seniority. Pending finalisation of seniority list
it waS decided to freeze the position as on a particular point of time.
The date chosen was Jst April, 1959 though the formal resolution
to merge the two services was published on 12th August 1959. The
seniority list published on 6th January, 1960was based on the position
as it was on !st April, 1959 and the promotions made in the service
after that date have been ignored. Direct recruits who joined the
Class I service and officers promoted after Jst April, 1959 did not figure
in the seniority list circulated on 6th January, 1959. The petitioners
who joined Class I service in July 1959 were rightly not included in.the
combined seniority list of 6th January, 1960.
The petitioners have not raised any objection regarding the merger
from 1959 to 1970 and it was not open lo them to approach this Court
after such long delay.
The Judgment of the Court was delivered by
JAGANMOHAN REDDY, J.-Six petitioners, of whom the 4th petitioner has since died. challenge the decision of the first respondent.
the Union of India, fixing the principles of seniority of members
of the Customs and Central Excise Service Class I as if the combined
Service came into ei:istence on April I, 1959, inst<ad of August J 5,,
1959-the date on which the Presidential Resolution dated August 12,
1959 said that the combined Service would come into effect. Petitioners 2, 3, 4 & 6 were appointed as probationary Superintendents
of Central Excise Class T in the Central Excise Service Class I with
effect from July 13, 1959 on the result of the combined competitive
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examination held by the second respondent, the Union Public Service
Commission, in 1958: (vide notification of the Government of India
(C~ntral Excise Establishment) dated August 4, 1959). Similarly,
petitioners 1 & 5_ were appo~nted on the same date, namely, from July 13,
1959, as probat10nary Assistant Collectors of Customs in the Indian
Customs. Service Class I on the result of the combined competitive
examrnal!on held by the second respondent in 1958: (vide notification
of the Government of India (Customs Establishment) dated August 4,
1959) .. The petitioners say that contrary to the Presidential Resolution
of August 12, 1959, creating the combined Service of Customs and
Central Excise, Class I, comprising of all the existing members of both
the Services as from August 15, 1959, the impugned decision of the
Government which prescribed the principles of seniority of members
of the two individual Services as if the combined Service came into
existence on April 1, 1959, would affect their seniority. as they would
b~ considered to be appointed only after the constitution of the combmed Sernce, when in fact they were members of one or other of the
two Services on the date when the combined Service was created. As
the combined list of seniority of OfficersintheServicewas prepared v ith
reference to April I, 1959 as being the date of the merger, the petitioners
complain that they were excluded from the list of Officers appointed
to the initial constitution of the Indian Customs and Central Excise
Service Class I, even though they had joined the two separate Services
on July 13, 1969, as a consequence of which persons who would be
juniors, if the principles of seniority were made applicable to them,
have become senior and have been promoted by overlooking their
claims. When the impugned letter dated April 7, 1970 gave time till
May 15, 1970, calling on any member of the Service to point out any
factual mistakes or errors in the application of the principles enunciated
in the said letter, it appears all the petitioners made representations
in which they asserted that the integration of the two Services having
taken place on August 15, 1959, and not on April\, 1959, they were
entitled to be included in the initial constitution of the .combined
Service and on the application of the principles enunciated in.the said
letter no distinc_tion could be made between the direct recruits appointed
to the Indian Customs Service Class I and the Central Excise Service
Class I in the years 1955 to 1958 and the direct recruits appointed to
the said two Services in the year 1959. In their representations the
petitioners had claimed that they be placed above respondent 3 and
requested that till this matter was decided promotions from the combined
seniority list below Serial No. 73 should not be made, but in spite of
this request, even before the date calling for representations expired,
some Officers were promoted on May 11, 1970, without considering
their claims.
The first respondent in its counter affidavit stated that the idea of
having a separate Class I Service for the Central Excise. Department
was mooted for the first time in 1944, but the final constitution of the
Central Excise Service Class I took place only with effect from July l,
1955; that after the idea of constituting a Central E:<cise Service was
mooted in 1944 the first respondent says that training in central excise
work was given to Officers recruited to the Indian Customs Service and
592
SUPREME COURT REPORTS
l 1974 J 3 s.c.11..
even right from !950 tho notifioation i;sued by the second re;pondent for the com'.>ined I. A. S. Etamination stated that the direct
re:ruitment was to the Indian Customs and Excise Service even
though there was no su :h service in existence upto July 1, 1955 and
tbai even after the formation of the Service with effect from July I,
J 955, anj upto its subsequent integration with the Indian Customs
Servi;e in 1959 the notification issued by the seconj re<pondent
stated that the recruitment was to the Indian Customs and Central
Exci;e Service Class I and not. to the Indian Customs Service
and the Central Excise Service separately, though the actual
allocation of
the candidates between the two Services was
made by the Department of Revenue. It was also stated that ·
the order constituting the Central Excise Service Class I with effect
from July 1, 1955, provided that future vacancies in the grade of
Sup:rintendent of Central Excise Class I will be filled up by direct
recruitment and promotion in the ratio of 1 :1 and that when the final
decision to merge the Indian Customs Service Class I and the Central
Excise Service Class I was taken by the Government in March 1959,
an Official Committee was set up to make recommendations regarding
the determination of inter se seniority in the merged service of the
offic.rs in position in the two constituent Services atthe time ofintegration. As the finalisation of the seniority list was expected to take some
time it was felt desirable to freeze the position of officers in the two
departments as on a particular point of time so that changes introduced
thoreafter in one Service did not affect the members of the other Service
on a lasting and irretrievable basis. Accordingly the date, April 1,
1959, was chosen though the formal resolution to merge the two Services
was published only on August 12, 1959. The counter of the Union
of India further stated that as the seniority principles enunciated by
the Government in their letter of January 6, 1960 had raised a controversy, the Government referred the matter to the second respondent
under Art. 320 (3) (b) of the Con•titution, and ultimately the letter of
April 7, 1970 was issued accepting not only the principles evolved by
the second respondent, but also the date April 1, 1959, as the date on
which the integration of Services were to come into effect as previously
indicated in the first respondent's letter of January 6, 1960.
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An objection was sought to be taken on the ground that there was
an inordinate delay in the petitioners' presenting the writ petition after
over ten years even though the letter of January 6, 1960 stated that
the decision taken by the Government was final.
Th~ petitioners
countered this objection by pointlng out, firstly, that the Jetter of
January 6, 1%0 was addressed to the Heads of Departments who
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were asked to communicate the decision to those officers whose
names figured in the list and since the petitioners were appointed
after April 1, 1959, their names did not appear and the decision
was not_ communicated to them, secondly, the letter of April
7, 1970, itself clearly stated that everything done earlier by the
<!overnment was prm isiona!. It is, therefore, urged
that as
right from !he beginning objections had been taken by
the
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Service Assoc1attons regarding the principles enunciated in the
lttter of January 6, 1960, and the Government itself had called
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upon the Service Associations by its letter of June 20, 1961, to enunciate
theprinciplesthey consideredfair in fixingtheseniority, in compliance
to which objections were being urged, the petitioners cannot be held
to have committed any !aches. Taking into consideration the respective
contentions it appears to us that having regard to the stand taken by
the Government and the admissions made by it in the letters subsequently written that the proposals set out in the letter of January 6, 1960,
were to be treated as provisional, the petitioners could not have come
to this Court earlier till a final decisidn was made on April 7, 1970.
Accordingly the preliminary objection is not sustainable.
The petitioners' only objection to the decision of the Government
conveyed in the letter of April 7, 1970, is that the date, April I, 1959,
on which the two Services were said to have been merged for the purposes of inter se seniority was an artificial date chosen arbitrarily and
is sought to be given effect to without any legal authority. It appears
to us that this contention must be upheld. The Presidential Resolut1on
of August 12, 1959, which draws its authority fromthe proviso to Art.
309 of the Constitution is clear and categorical in that it not only shows
that the question of integration of the C'<ntral Excise Service Class I
and the Indian Customs Service Class I which was tl:J.e older of the two
Services was under consideration of the Government of India for quite
some time, but that "The President has now been pleased to decide
that the two services should be constituted into a single service with
effect from the 15th August, 1959." It also states that "The Service
will initially be formed from amongst all the existing Class I officers
of the Customs and Central Excise Services, who will henceforth be
borne on a single combined cadre for al\ purposes." (Emphasis
ours). It is not denied that ·the petitioners were members of the respective services on August 15, 1959, and consequently the ruleuelating
to seniority should be applicable to them in the same way as to those
recruited in 1958. The subsequent decision of the Government conveyed in the letter of April 7, 1970, has no legal validity, as it was not
purported to have been made in the name or with the authority of the
President oflndia, nor does it in any way seek to amend the Presidential
Resolution of August 12, 1959, nor does it purport to change the date
on and from which the integration was given effect to. On the contrary,
three days after the Presidential Resolution of August 12, 1959, intimating that the President bad decided that the two Services should be
constituted into a single Service with effect from August 15, 1959,
and from henceforth, namely on and from August 15, 1959, all persons
borne on the respective Services will be borne on a single combined
cadre, the Deputy Secretary to the Government of India, Ministry
of Finance, wrote to the President of all India Central Excise Officers
Association and the President, Indian Customs Service Association,
informing them that the Presidential Resolution was published in the
Gazette. This letter further explained the import of that Resolution
thus :
"Since it is the Government's intention that so far as
possible,. the existing normal expectations of promotion of
Officers •.n ~he cadre .posts of the two Deparlments·should be
secured, 1t 1s proposed to safeguard a suitable number of cadre
594
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[ 19741 3 s.c:a.
posts of the two Departments, based on the strength of such
posts on a particular date, to the officers of such Department,
for' a limited p>riod. This particular date will be the beginning
of the current financial year, viz. !st April, 1959. What is being
safeguarded is the number of posts of particular status irrespective of whether they are actually held by the officers of a Department in· that Department or elsewhere. This safeguard will
be necessary only in the supervisory posts of the Deputy Collectors ana above of each Department. Posts arising in the two
Departments after !st April, 1959, deputation posts and other
ex-cadre posts, can obviously not be the subject of any safeguard.
With the merger, the t\>O services will become one and offiters of
the combined service, as a whole, will be co-sharers of the future
prospects and vicissitudes of the combined service."
Even in this letter, l st April, 1959, has not been shown as the date
Oil. which the two Services were to be integrated, but only that it was
proposed to safeguard a particular number of posts in the Department
on a particular date, namely,
!st April, 1959. No mention has
been made, in supersession of the Presidential Resolution, that Jst
April, 1959 will be the date of the merger of the two Services. In any
case, it is clear that the Government has no authority to override the
Presidential Resolution by any subsequent decision
which lacks
legal authority and is violative of Art. 14 of the Const.itution oflndia.
In this view. the petition is allowed with costs. The Government
is directed to give effect to the Presidential Resolution of August 12,
1959, in respect of integration of the two Services from August l 5,
1959, and to apply the principles of seniority to the petitioners as if
they were members of the respective Services which were integrated
after their appointment in July 1959.
P.B.ll.
Petition allowed.
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